A Constipated View of What the Law Is

Liptak & Schmidt, Judge Upholds N.S.A.’s Bulk Collection of Data on Calls NYTimes (December 27, 2013):

Judge Pauley also said it was not for him to say where the law was heading, but for a different reason. “The Supreme Court,” he said, “has instructed lower courts not to predict whether it would overrule a precedent even if its reasoning has been supplanted by later cases.”
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Hanoch Dagan on Law's "Structural" Pluralism

Amit Pundik, Interview with Hanoch Dagan, 8 The Reasoner 2 (January[sic], 2014):

HD: ... I criticize the pretence of monist theories of Property (or Contract, for that matter) to o ffer one regulative principle—the most prevalent suggestion revolves around Blackstone’s formula of “sole and despotic dominion”,which stands for an owner’s right to exclude—that is supposed to account for this entire field, or at least for its core.So let’s indeed take property. My critique begins with a straightforward descriptive observation:Property law as both lawyers and citizens experience it is quite complex; and this complexity is at odds with the Blackstonian straightjacket. Thus we can find side by side doctrines that by and large comply with a libertarian commitment to negative liberty (think fee simple absolute, which is the technical legal term for full-blown ownership of land) alongside other doctrines in which ownership is a locus of communitarian sharing (as in marital property) or of utilitarian welfare maximization (as with patents), as well as many other doctrines vindicating various types of balances among these (and other) property values (such as copyright which both vindicates the unique significance of creative resources to authors’ identity and encourages creative activity which is conducive to human flourishing and to democratic governance). I do not deny that all these di fferent institutions share a common denominator; indeed, every property right involves some power to exclude others from doing something. But I insist that this common denominator is not robust enough to illuminate the existing doctrines or determinative enough to provide significant guidance as per their evaluation or development.The normative deficiency of Property and Contract monism is at least as troubling as the descriptive deficiency, and in a somewhat paradoxical way. Monist theorists of these fields tend to be liberals, and their suggested animating principles—exclusion for property; will (or consent) for contracts—stand for the ultimate liberal value of individual autonomy. But if Law had taken these theories seriously (which, as I’ve just said, it fortunately hasn’t), it would have erased or marginalized all these “nonconforming” forms, leaving people to their own devices if they wish to tailor-make them for themselves. Such a hands-o ff policy, even if accompanied by a hospitable attitude to freedom of contract, would have been detrimental to our autonomy. The reason for this is that property forms (and contract types) rely heavily on active legal (or law-like) facilitation,both for overcoming the various types of transaction costs involved and as sources (particularly in modern times) of our cultural conventions. Because Law is a major player in making options viable for us—maybe even imaginable to us—anautonomy-enhancing law must proactively participate in providing us with a multiplicity of options for interpersonal relationships:a diverse menu of property institutions and contract types. Monism undermines this liberal obligation and is thus,in my view, not only descriptively misleading but also normatively disappointing.

AP: How would you explain your pluralist theory of Legal Institutions to non-lawyers?

HD: The best way may be to first contrast it with the type of pluralist theories you mentioned in your introduction and then see how it nicely (I think. . . ) emerges from the descriptive and normative critique of monism I’ve just mentioned. I call my theory structural pluralism in order to highlight that its main distinctive feature is a commitment to multiplicity of legal options with respect to each major form of human interaction (regarding resources, broadly defined). Unlike certain “mixed” theories, I do not argue for foundational pluralism,which denies that there is one ultimate value (private) law should vindicate; indeed, as I’ve just hinted, I think that there is one such ultimate value: individual autonomy properly understood, namely our right to self-determination or self-authorship,which requires not only independence from others,but also a robust set of su fficiently diverse viable options from which we can choose. ...

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